Source text

National Council of Canadian Muslims v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2022-07-25
Neutral citation
2022 FC 1087
File numbers
T-1005-21
Notes
Reported Decision
Decision Content
Date: 20220725
Docket: T-1005-21
Citation: 2022 FC 1087
Ottawa, Ontario, July 25, 2022
PRESENT: The Honourable Madam Justice Kane
BETWEEN:
NATIONAL COUNCIL OF CANADIAN MUSLIMS,
CRAIG SCOTT, LESLIE GREEN, ARAB CANADIAN LAWYERS ASSOCIATION, INDEPENDENT JEWISH VOICES AND CANADIAN MUSLIM LAWYERS ASSOCIATION
Applicants
and
THE ATTORNEY GENERAL OF CANADA
Respondent
and
CANADIAN JUDICIAL COUNCIL, CENTRE FOR FREE EXPRESSION, CANADIAN ASSOCIATION OF UNIVERSITY TEACHERS, AND B’NAI BRITH OF CANADA LEAGUE FOR HUMAN RIGHTS
JUDGMENT AND REASONS
[1] The Applicants, individuals and organizations, who made complaints to the Canadian Judicial Council [CJC] regarding the conduct of Justice David Spiro, seek judicial review of the decision of the CJC that ultimately concluded that the conduct complained of did not warrant the establishment of an Inquiry Committee to determine whether to recommend removal from judicial office. The CJC issued a formal expression of concern and closed the complaints.
[2] The Applicants argue that the decision is unreasonable on several grounds and seek a declaration that it be quashed and remitted to the CJC for reconsideration. The Applicants further argue that the CJC’s procedures are unfair and should be reviewed, and more particularly, that the CJC breached the duty of procedural fairness owed to the complainants and, as a result, the decision cannot stand.
[3] On October 25, 2021, the CJC was granted leave to intervene in order to explain the statutory provisions and process for reviewing complaints, and to make submissions regarding the scope of the duty of procedural fairness owed to complainants within that process.
[4] On March 9, 2022, the Centre for Free Expression [CFE] and the Canadian Association of University Teachers [CAUT] were granted leave to jointly intervene to make submissions regarding the impact of Justice Spiro’s conduct on academic freedom and the CJC’s alleged failure to consider this issue.
[5] Also on March 9, 2022, B’nai Brith of Canada League for Human Rights [B’nai Brith] was granted leave to address the issue of how a judge’s affiliations or positions on geopolitical conflicts may or may not affect their impartiality, to the extent that these issues arise.
[6] For the reasons that follow, I find that the decision of the CJC is reasonable. The CJC considered the jurisprudence that has established the test for a recommendation that a judge be removed from office and applied that test to the facts before it. The CJC did not misapprehend the impact of Justice Spiro’s conduct on academic freedom nor overlook the complaints regarding an apprehension or perception of bias. The CJC acknowledged that Justice Spiro made a serious mistake; however, based on the consideration of all relevant factors, including the factual account of the conduct at issue, Justice Spiro’s acknowledgment of his conduct, early expression of remorse, and the letters of support attesting to his reputation and integrity over the course of his career, the CJC reasonably found that on a go-forward basis there was no reasonable apprehension of bias.
[7] In addition, I find that the duty of procedural fairness owed by the CJC to the complainants in the present circumstances is at the lower end of the spectrum of procedural rights and the CJC did not breach the duty owed.
I. Background
[8] The Applicants filed complaints with the Canadian Judicial Council concerning Justice David Spiro of the Tax Court of Canada. The complaints alleged that Justice Spiro had interfered in an appointment process at the University of Toronto [U of T] Faculty of Law. In accordance with the CJC’s Procedures for the Review of Complaints or Allegations About Federally Appointed Judges [Review Procedures] and the Canadian Judicial Council Inquiries and Investigations By-laws, SOR/2015-203 [By-laws], the Vice-Chair of the Judicial Conduct Committee referred the complaints to a Judicial Conduct Review Panel [the Review Panel]. The Review Panel considered whether Justice Spiro’s conduct might be serious enough to warrant his removal from judicial office and determined that it was not. The Review Panel expressed the belief that further remedial action was not required and remitted the matter to the Vice-Chair. The Vice-Chair issued a formal expression of concern to Justice Spiro, pursuant to section 8.3 of the Review Procedures, and the complaints were subsequently closed.
[9] The Executive Director of the CJC wrote to each complainant on May 20, 2021 to advise them of the outcome of the CJC’s review of their complaints.
[10] The events underlying the complaints made to the CJC concern Justice Spiro’s communication with an executive at the U of T regarding the possible appointment of Dr. Valentina Azarova as Director of the International Human Rights Program [IHRP] in the Faculty of Law. The background as described below is derived from the information provided to the CJC that is on the record.
[11] The Faculty of Law at U of T established a search committee to oversee the hiring process for a new director for its IHRP. In August 2020, the search committee identified Dr. Azarova as their preferred candidate. Dr. Azarova is an international human rights scholar, who resided in Germany. There was ongoing correspondence between Dr. Azarova and members of the hiring committee regarding the details of her appointment, including with respect to her immigration status and whether she would be able to return to Europe in the summers.
[12] Although the hiring process was intended to be confidential, persons outside the university, including members of the Centre for Israel and Jewish Affairs [CIJA], became aware of the potential appointment of Dr. Azarova. The CIJA is an advocacy organization with the stated mission of protecting the quality of Jewish life in Canada.
[13] On September 2, 2020, Professor Gerald Steinberg, based in Jerusalem, corresponded by email with his contacts at the CIJA, expressing his view that Dr. Azarova is an “anti-Israel academic crusader” whose scholarship “is almost entirely focused on promoting the Palestinian narrative, the Israel ‘apartheid’ theme, war crimes, etc.” Professor Steinberg suggested that the appointment would be “academically unworthy” and that representatives of the CIJA could pursue “quiet discussions” to determine the status of Dr. Azarova’s appointment. Professor Steinberg shared a more detailed memo with the CIJA setting out his concerns and objections to Dr. Azarova’s possible appointment.
[14] Judy Zelikovitz, Vice-President, University and Local Partner Services at CIJA, received Professor Steinberg’s email and memo and inquired of others within CIJA whether this concern could be raised with Justice Spiro, a former Director of the CIJA and alumnus of the U of T Faculty of Law.
[15] Justice Spiro had resigned from his role with the CIJA upon his appointment to the Tax Court. Justice Spiro had been active in U of T Faculty of Law fundraising campaigns and he and members of his family have made donations.
[16] Another CIJA member, who received Professor Steinberg’s email, forwarded their email exchange with Ms. Zelikovitz to Justice Spiro, which stated:
I think you can approach him. He is friends with the Dean, Ed Iacobucci. I [am] copying him on this, as I don’t think his reaching out to Ed compromises his judicial position. If I am wrong, David will so advise.
[17] On September 3. 2020, Justice Spiro spoke by phone with Ms. Zelikovitz. Justice Spiro recounts that Ms. Zelikovitz relayed the concerns about Dr. Azarova’s potential appointment. Justice Spiro agreed to receive Professor Steinberg’s memo.
[18] On September 4, 2020, Justice Spiro spoke by phone with Chantelle Courtney, Assistant Vice-President of Divisional Relations at the Division of University Enhancement, U of T. Ms. Courtney had previously occupied a position at the Faculty of Law. Justice Spiro and Ms. Courtney became friends due to their collaboration on fundraising campaigns. Email exchanges in the record indicate that Ms. Courtney initiated contact with Justice Spiro on August 30, 2020, suggesting that they catch up, and they had arranged to do so by phone the following week, on September 4, 2020.
[19] Justice Spiro recounts that he asked Ms. Courtney to find out the status of the appointment process. Ms. Courtney made inquiries, learned that the appointment of Dr. Azarova had not been finalized, and advised Justice Spiro by email that same day. She advised she had passed along the points they had discussed to the Dean.
[20] In his submissions to the CJC, Justice Spiro described his phone call with Ms. Courtney as follows:
I mentioned that I had learned (from Ms. Judy Zelikovitz, a staff member of the [CIJA]) that a candidate for the position of Director of the [IHRP] at the Faculty of Law had written articles and associated herself with a particular set of positions on the politically fraught Israel-Palestine conflict that may be considered by some to be one-sided and provocative.
I did not tell Ms. Courtney, or anyone else at the University, that the candidate, Dr. Valentina Azarova, should not be appointed. I expressed no opinion, political or otherwise, on the merits of her scholarship or the political positions she had advocated. I did express the hope that sufficient due diligence would be done in advance of any such appointment to enable the University of Toronto and the Faculty of Law to respond effectively if and when criticism arose as a result of the candidate’s appointment. I mentioned the matter to Ms. Courtney, at the end of a personal telephone conversation that she had scheduled with me, because I cared deeply about the University and its law school.
Although Ms. Zelikovitz suggested that I speak to Dean Iacobucci about the matter, I did not think it appropriate to do so and I did not do so. Nor did I ask Ms. Courtney to communicate with the Dean.
[21] On September 4, 2020, Justice Spiro also spoke with Professor Weinrib, a retired U of T professor. Justice Spiro advised Professor Weinrib that, according to Ms. Courtney, the appointment of Dr. Azarova was not confirmed.
[22] Over the course of September 4 and the days that followed, the Dean of the Faculty of Law was made aware of the status of the search process and expressed concerns about Dr. Azarova’s potential appointment on a number of grounds. On September 9, he informed the search committee that Dr. Azarova’s appointment would not proceed, citing the need for the selected candidate to be available soon and the immigration obstacles encountered. The Dean explained that this decision had not been influenced by either political considerations or external pressure.
[23] Members of the search committee reacted negatively and the IHRP’s faculty advisory committee later resigned.
[24] In December 2020, the U of T commissioned the Honourable Thomas Cromwell to conduct an independent and impartial review of the selection process for the Director of the IHRP, to determine whether university policies were followed, and to provide guidance for the future. His report, titled “Independent Review of the Search Process for the Directorship of the International Human Rights Program at the University of Toronto, Faculty of Law” [the Cromwell Report], was issued on March 15, 2021.
II. The Complaints
[25] Although the U of T’s process for the appointment of the Director was supposed to be confidential, it became known that Dr. Azarova was a candidate, and it became known, particularly among some academics, that Dr. Azarova would not be appointed. Media reports followed, reporting allegations of judicial interference in the IHRP search process.
[26] Between mid-September and mid-October 2020, several groups and individuals filed complaints with the CJC, including the Applicants:
Professor Leslie Green of the Queen’s University Faculty of Law emailed the CJC on September 16, 2020, to express concern that a judge of the Tax Court (unnamed at the time) had allegedly interfered with a confidential academic appointment process. He wrote again the following day to submit an official complaint, urging that if the allegations of interference were well founded, it would jeopardize the integrity and impartiality of the Tax Court and would give reason to any party or lawyer appearing before it who is Palestinian, Arab or Muslim to fear bias.
Professor Craig Scott of Osgoode Hall Law School subsequently wrote to reiterate and adopt Professor Green’s complaint.
The National Council of Canadian Muslims [NCCM] complained, requesting an investigation into the reported conduct. The NCCM acknowledged that the allegations were unproven and “not yet grounded in independently verifiable fact,” but explained why an investigation was called for. The NCCM noted that the allegations called into question the integrity of the judiciary. The NCCM relayed concerns of Muslim academics that this incident reflects a broader trend of judicial interference in hiring decisions and with academic freedom. The NCCM also expressed concern about the reasonable apprehension of bias for those appearing before the Tax Court.
The Arab Canadian Lawyers Association, Independent Jewish Voices and the British Columbia Civil Liberties Association filed a joint complaint to provide context about how anti-Palestinian racism silences Palestinians and their allies. The complaint added that Justice Spiro’s alleged conduct failed to meet the standard of integrity required of a judge and undermined public confidence in the judiciary. The complainants reiterated concerns about Justice Spiro’s impartiality or the public perception thereof.
The Canadian Association of Muslim Women in Law and the Canadian Muslim Lawyers Association also filed a joint complaint raising concerns about Justice Spiro’s impartiality and independence.
III. The CJC’s Response to the Complaints
A. The Initial Screening of the Complaints
[27] The CJC acknowledged each of the complaints by email, noting that the complaints would be reviewed in accordance with the CJC’s Review Procedures and that once the review was completed, the Acting Executive Director would communicate with the complainants. The email further noted that if the complainant wished to add information to their complaint, this information could be sent to the email address provided. A link to the website of the CJC was also provided for further information on the complaints process.
[28] On September 30, 2020, in accordance with the CJC’s Review Procedures and following the initial screening of the complaints, the Acting Executive Director of the CJC [the Executive Director] wrote to Justice Spiro and to the Chief Justice of the Tax Court, Eugene Rossiter, to invite a response.
[29] On October 23, 2020, Chief Justice Rossiter responded, attesting to Justice Spiro’s good character and his contribution to the Tax Court. Chief Justice Rossiter expressed his opinion that this was a one-off event and that he was confident in Justice Spiro’s ability to judge impartially and without bias. The Chief Justice indicated that the Tax Court had taken the initiative of requesting that Justice Spiro recuse himself from any files in which parties or counsel appeared to be Muslim or of the Islamic faith to “allow for any concern related to a potential perceived bias from Justice Spiro to be removed.”
[30] On October 26, 2020, Justice Spiro responded. He acknowledged that he had made a mistake in communicating with the U of T regarding the appointment process and expressed regret for his actions and the consequences for public confidence in the judiciary. He explained that he had not attempted to exert pressure or to influence the hiring decision, nor to express any personal disapproval of Dr. Azarova’s scholarship. He stated that his only concern was to prepare the U of T and the Faculty of Law for what he anticipated would be an adverse and highly public reaction. He added that he harbours no anti-Palestinian, anti-Arab or anti-Muslim sentiment and has devoted significant time throughout his career to better understanding the Israel-Palestine conflict and to building bridges between the communities involved.
[31] In accordance with the CJC’s Review Procedures, the Executive Director referred the complaints to the Vice-Chair of the Judicial Conduct Committee, Associate Chief Justice of the Alberta Court of Queen’s Bench, Kenneth Nielsen.
B. Reasons for Referral by the Vice-Chair of the Judicial Conduct Committee
[32] The Vice-Chair reviewed the complaints and the responses of Justice Spiro and Chief Justice Rossiter. On January 5, 2021, the Vice-Chair issued written reasons for finding that he had concerns significant enough to require the establishment of a Judicial Conduct Review Panel.
[33] The Vice-Chair considered the information and submissions received to date. The Vice-Chair stated that the question remained as to the purpose of Justice Spiro’s comment to Ms. Courtney that the appointment was likely to generate backlash, noting Justice Spiro’s assertion that his intent was to warn the Faculty of the likely controversy. The Vice-Chair expressed the view that Justice Spiro had indicated a lack of integrity and departed from his duty of impartiality when he received information from the CIJA about their concerns about the selection of Dr. Azarova; conveyed this information to an executive at the university; failed to clarify that the views he expressed were not necessarily his own; asked the executive to make inquiries regarding the status of the selection process; and conveyed that information to another person. The Vice-Chair stated that in his view, “Justice Spiro’s conduct puts at risk public confidence in the integrity, impartiality and independence of the judiciary” and, together with Justice Spiro’s lack of insight into the inappropriateness of his conduct, raised concerns about his fitness to hold office as a judge.
[34] The Vice-Chair referred the complaints to the Review Panel in accordance with subsection 2(1) of the CJC’s By-laws, which provides that the Chair or Vice-Chair may establish a Review Panel if they determine that “a complaint or allegation on its face might be serious enough to warrant the removal of the judge.”
C. The Report of the Review Panel
[35] On April 13, 2021, the Review Panel issued its 14-page report. The Review Panel noted that its task was to determine whether an Inquiry Committee should be constituted to inquire into Justice Spiro’s conduct. In accordance with subsection 2(4) of the By-laws, the Panel may do so “only if it determines that the matter might be serious enough to warrant the removal of the judge.”
[36] The Panel noted the various complaints received and the concerns raised therein. The Panel also described the background giving rise to the complaints and as described above.
[37] The Review Panel noted the distinction between its role and that of the Vice-Chair, with reference to subsections 2(1) and (4) of the By-laws, and added that this distinction suggests a more searching inquiry by the Review Panel.
[38] The Review Panel noted that it did not make findings of fact; rather, it weighed the evidence on the record to determine whether the conduct meets the “might be” threshold in subsection 2(4) of the By-laws. The Panel noted that this threshold “surely reflects a threshold higher than ‘slim to none’ but short of ‘on a balance of probabilities.’” The Panel added that the “‘might be’ threshold must reflect the very significant seriousness of the remedy of removal; the ‘crime’ must fit the ‘punishment.’”
[39] The Review Panel noted two aspects to the complaints. The Review Panel first considered the issue of perceived bias, noting that “to be specific, it would be seen to be a bias against Palestinian, Arab or Muslim interests.” The Panel determined that an informed person, apprised of the conduct of Justice Spiro over the course of his career and including this matter, could not conclude that Justice Spiro would be unable to decide cases impartially. The Panel considered that the fear of bias expressed in the complaints was based on misinformation and speculation regarding the true extent of Justice Spiro’s interference. The Panel noted that like Justice Spiro, who was formerly a director of CIJA, most, if not all, judges have backgrounds involving similar community, religious, or cultural associations, and that such affiliations are not themselves sufficient to establish a perception of bias.
[40] The Review Panel concluded that the future fear of bias was not well founded and could not form the basis for directing that an Inquiry Committee be constituted.
[41] The Review Panel then considered the allegation of serious misconduct by actively aiding a lobby group attempting to prevent the appointment of a person whose views are at odds with those of the lobby group. The Review Panel noted the distinction between voicing concern about the publicity that may arise from the appointment and actively lobbying against the appointment based on disapproval of the candidate.
[42] The Review Panel found that the appropriate characterization of Justice Spiro’s conduct was an expression of concern that the appointment might subject the Faculty of Law to adverse criticism and publicity. The Review Panel noted that the Cromwell Report was confirmatory of this characterization. The Cromwell Report concluded, based on detailed accounts, “that the Alumnus [Justice Spiro] simply shared the view that the appointment would be controversial with the Jewish community and cause reputational harm to the University.”
[43] The Review Panel also cited the conclusion in the Cromwell Report that it could not be inferred from the facts gathered that Justice Spiro’s communication with Ms. Courtney had factored into the decision to terminate Dr. Azarova’s candidacy.
[44] The Review Panel noted that the concern about active lobbying or advocacy was based on the inaccurate premise that Justice Spiro had acted in furtherance of CIJA’s aim of preventing Dr. Azarova’s appointment and had done so in contact with the Dean. The Review Panel determined that this was not the case, and that Justice Spiro was rather “an active, generous alumnus who has historically and admirably supported his law school, expressing concern that a potential faculty appointment will subject the institution to unwanted controversy and harsh publicity.”
[45] The Review Panel explained that the test for removal is stringent, citing the test established by the Supreme Court of Canada in Therrien (Re), 2001 SCC 35 at para 147 [Therrien] and subsection 2(4) of the CJC’s By-laws. The Panel could not conclude that Justice Spiro’s conduct “might be serious enough to warrant” his removal from office. The Panel noted that Justice Spiro has recognized his mistakes, adding, “These errors are serious but in the end do not, in our view, warrant the imposition of the ultimate penalty for judicial misconduct.” In light of Justice Spiro’s remorse and acknowledgment of his mistakes, the Panel recommended that no further remedial action by the CJC or the Chief Justice of the Tax Court was required. The Review Panel referred the matter back to the Vice-Chair in accordance with subsection 2(5) of the By-laws.
[46] On April 22, 2021, after the Review Panel had issued its Report and referred the matter to the Vice-Chair for disposition, but prior to its public release, Professor Scott sent further submissions to the CJC. Professor Scott noted the passage of several months and his concern that the CJC had not solicited further submissions from him. Professor Scott’s submissions focussed on his criticism of the Cromwell Report and urged the Review Panel to make its own findings. Professor Scott attached several articles and letters that were also critical of the process and findings in the Cromwell Report.
D. The Vice-Chair’s Decision
[47] On May 19, 2021, the Vice-Chair wrote to Justice Spiro to inform him that the Review Panel had determined that his conduct was not such that it might be serious enough to warrant removal. The Vice-Chair noted that his task was to decide the “most appropriate way to resolve the complaints.” The Vice-Chair stated that in deciding that no further action was necessary, he had considered Justice Spiro’s sincere regret and his early recognition of his mistake, the support of his Chief Justice and the Report of the Review Panel. However, the Vice-Chair found it necessary to issue a formal expression of concern, in accordance with section 8.3 of the Review Procedures.
[48] The Vice-Chair stated that Justice Spiro’s conduct had put public confidence in the integrity, impartiality and independence of the judiciary at risk and also risked diminishing confidence in the administration of justice. The Vice-Chair noted that his comments were offered in a constructive spirit. The Vice-Chair addressed the media reports and the concerns expressed by the complainants, including those of law professors and various lawyers’ organizations, noting that these “are a testimony to the perception of the public and of the impact of your conduct.” The Vice-Chair added, “At all times, judges should ensure that their conduct, both in and out of court, will sustain and contribute to public respect and confidence in their integrity, independence, impartiality and judgment.”
E. The Executive Director’s Letters to the Complainants
[49] On May 20, 2021, the Executive Director wrote to each complainant to inform them of the review procedures that had been undertaken, the conclusions of the Review Panel, and the key facts and reasons for the Review Panel’s conclusion. The Executive Director also explained the basis for the Vice-Chair’s decision to issue a formal expression of concern, noting the Vice-Chair’s view that it was “a serious error for Justice Spiro to discuss the appointment of the Director of IHRP, one that he regrets and that he states he has learned from,” but that “Justice Spiro is acutely aware of his duty to the public, as a judge, to not only ensure he is impartial, but to be seen as being impartial.”
[50] The Executive Director stated that the Vice-Chair had instructed her to close the complaints.
[51] The letters to each of the complainants were identical, with the exception of an additional paragraph in the letter to Professor Scott, which noted his additional submissions. That letter stated, “The Review Procedures and the By-laws do not provide an opportunity for a complainant to make submissions to a Review Panel, and Review Panels do not seek such submissions. Nevertheless, Associate Chief Justice Nielsen [the Vice-Chair] commented he did review your submissions of April 22, 2021 when making his decision on the most appropriate way to resolve this complaint.”
F. The CJC’s News Releases
[52] On January 11, 2021, the CJC issued a news release, “Canadian Judicial Council constitutes a Review Panel in the matter involving the Honourable D.E. Spiro,” noting that the Vice-Chair had referred the matter to the Review Panel.
[53] On May 21, 2021, the CJC issued a news release, “Canadian Judicial Council completes its review of the matter involving the Honourable D.E. Spiro.” The news release provided a similar summary to that sent to the complainants.
[54] On October 12, 2021, the CJC issued a news release entitled “Report of the Review Panel Regarding the Honourable D.E. Spiro,” which provided a link to the Report.
IV. The Issues and Standard of Review
[55] This application raises two issues.
[56] The first is whether the CJC’s ultimate decision—to close the complaints without constituting an Inquiry Committee and with a formal expression of concern and no further remedial action—is reasonable. As described below, the Applicants challenge the reasonableness of the decision on several grounds.
[57] A reasonable decision is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision-maker (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at paras 85, 102, 105–07 [Vavilov]). A decision should not be set aside unless it contains “sufficiently serious shortcomings … such that it cannot be said to exhibit the requisite degree of justification, intelligibility and transparency” (Vavilov at para 100).
[58] In Portnov v Canada (Attorney General), 2021 FCA 171 at para 33 [Portnov], the Federal Court of Appeal confirmed that as in pre-Vavilov jurisprudence, the Court may look beyond the decision to determine its reasonableness:
In conducting reasonableness review, this Court is entitled to look at the reasons offered by the decision-maker, associated documents that shed light on the reasoning process, any submissions made to the decision-maker, and the record before the decision-maker. Reasons can be express or implied. See generally Mason at paras. 30-42 and the citations to Vavilov therein.
[59] In Girouard v Canada (Attorney General), 2020 FCA 129 [Girouard], regarding a decision of the CJC, the Court of Appeal found that, although the decision under appeal had been rendered before the Supreme Court of Canada’s decision in Vavilov, it respected the Vavilov principles.
[60] In Girouard, the Court of Appeal stated, at para 42,
Ultimately, the onus is always on the applicant to demonstrate that a decision is unreasonable, and reasonableness must be assessed taking into account both the outcome of the decision and the reasoning process that led to that outcome (Vavilov, at paras. 75 and 87). Reasonableness review finds its starting point in judicial restraint and respects the distinct role of administrative decision-makers (Vavilov, at paras. 75 and 82). In other words, the role of a reviewing court is to consider the reasonableness of the decision made, not to assess that decision against the decision it would have made:
It follows that the focus of reasonableness review must be on the decision actually made by the decision maker, including both the decision maker’s reasoning process and the outcome. The role of courts in these circumstances is to review, and they are, at least as a general rule, to refrain from deciding the issue themselves. Accordingly, a court applying the reasonableness standard does not ask what decision it would have made in place of that of the administrative decision maker, attempt to ascertain the “range” of possible conclusions that would have been open to the decision maker, conduct a de novo analysis or seek to determine the “correct” solution to the problem.
Vavilov, at paragraph 83.
[61] The second issue is whether the CJC breached the duty of procedural fairness owed to the complainants in the circumstances of this case. The Applicants also raise the more general issue of whether the CJC’s complaint review procedures, including the lack of an opportunity for complainants to make further and responsive submissions, are unfair.
[62] Where an issue of procedural fairness arises the Court must consider whether the procedure followed by the decision-maker was fair having regard to all of the circumstances, including the Baker factors: Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817, 1999 CanLII 699 [Baker]; Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69 at para 54 [CPR]. Where a breach of procedural fairness is found, no deference is owed to the decision-maker.
V. The Applicants’ Submissions
[63] The Applicants submit that the decision is not reasonable. The Applicants also submit that the CJC’s process for reviewing complaints is not procedurally fair and, in particular, that the CJC breached the duty of procedural fairness owed to them as complainants.
A. The Decision
[64] The Applicants characterize the letters sent by the Executive Director to the complainants on May 20, 2021 as the decision that is subject to judicial review. The Applicants note that they had nothing more than these letters on which to seek judicial review of the decision. The Applicants add that they only received other documents upon receipt of the certified tribunal record [CTR] from the CJC after they filed this application.
B. Reasonableness of the Decision
[65] The Applicants submit that the decision is not reasonable; the decision letters fail to explain the basis for the decision and do not provide any link to the reasons of the Review Panel or the reasons of the Vice-Chair for closing the complaints. The Applicants generally submit that the decision does not meet the reasonableness standard established in Vavilov; it is not transparent, justified and intelligible.
[66] The Applicants argue that the CJC erred in two respects: the Review Panel erred by not finding that the complaints should be referred to an Inquiry Committee, and the Vice-Chair erred in finding that no further action was warranted. The Applicants submit that given that the CJC agreed that Justice Spiro’s conduct was a serious mistake, the conclusion that no further remedial measures were required is unreasonable.
[67] The Applicants explain that the heart of the complaints is that Justice Spiro improperly interfered in an academic appointment on behalf of an advocacy group after his appointment to the bench. The Applicants clarify that they are not focussing on Justice Spiro’s personal beliefs or his advocacy prior to his appointment.
[68] The Applicants submit that the CJC failed to appreciate that the complaints raised two distinct issues: whether Justice Spiro’s improper interference in an academic appointment for the benefit of an advocacy organization by relying on his past contacts amounted to misconduct; and whether this conduct raised a reasonable apprehension of bias.
(1) Lack of a rational chain of analysis
[69] The Applicants submit that the decision lacks internal coherence and a rational chain of analysis for several reasons.
[70] First, the Applicants submit that the Review Panel’s report lacks a rational chain of analysis because it fails to articulate a legal test or standard against which to determine whether Justice Spiro’s conduct was serious enough to warrant removal.
[71] Second, the Applicants submit that the Review Panel made an incomprehensible and unexplained distinction between Justice Spiro’s conduct as voicing concern about the negative impact of Dr. Azarova’s appointment rather than actively campaigning against it.
[72] The Applicants point to several events, which they submit demonstrate that Justice Spiro’s involvement was more than simply voicing his concern and that his conduct amounted to advocacy on behalf of the CIJA. The Applicants point to:
Professor Steinberg’s email to the CIJA attaching his memo setting out concerns about Dr. Azarova’s work and requesting that the CIJA find out the status of the appointment process, which led to CIJA reaching out to Justice Spiro.
· Justice Spiro’s email with Ms. Courtney and their telephone conversation in which he raised the issue of Dr. Azarova’s appointment.
· Justice Spiro’s acknowledgment that it would not be appropriate for him to contact the Dean.
· The concern that although Justice Spiro did not ask Ms. Courtney to contact the Dean, Justice Spiro would have known that she would raise the issue with the Dean, given the email exchange, which reflects that Ms. Courtney undertook to advise Justice Spiro of the status and Justice Spiro suggested she contact him if she needed further information.
· The concern that Justice Spiro shared the memo prepared by Professor Steinberg, who described Dr. Azarova as “one of the nastiest anti-Israeli academic crusaders” and a “hard core activist,” with Professor Weinrib (a retired U of T prof).
[73] Third, the Applicants submit that the decision failed to address the fundamental complaint that Justice Spiro acquiesced to the request of a lobby group, the CIJA, which shows that he continued his advocacy for the CIJA after his appointment to the bench.
[74] Fourth, the Applicants submit that the decision fails to address the perception of bias and the issue of confidence in the administration of justice arising from this perception. The Applicants add that the CJC failed to specifically address the complaints of anti-Palestinian bias and conflated anti-Palestinian racism with anti-Muslim and anti-Arab racism in a manner that reinforces the marginalization of Palestinian Canadians. The Applicants note that the Chief Justice of the Tax Court acknowledged the concerns about bias, yet the Review Panel ignored them.
[75] Fifth, the Applicants submit that the decision fails to explain why the Vice-Chair determined that closing the complaints was the most appropriate resolution of the matter, given the availability of other remedial measures. They also criticize the Vice-Chair for not explaining how Justice Spiro’s remorse mitigated the seriousness of his conduct.
(2) Lack of justification on the facts and the law
[76] The Applicants also submit that the decision is unreasonable because it is not justified in the light of the facts and the law.
[77] First, the Applicants argue that the facts do not support the finding that “no right thinking person” would conclude that there was a reasonable apprehension of bias. The Applicants submit that there was ample evidence of a reasonable apprehension of bias, pointing to Justice Spiro’s previous involvement with CIJA, views he previously expressed regarding “anti-Israel propaganda,” and his interference in this appointment process, which is argued to demonstrate ongoing advocacy on behalf of CIJA since his appointment to the bench. The Applicants again submit that the measures taken by the Chief Justice of the Tax Court to remove Justice Spiro from certain files—which shows the Chief Justice’s concern about a reasonable apprehension of bias—should have signalled to the CJC that Justice Spiro’s conduct raised concerns of integrity, impartiality and independence. Yet, the CJC unjustifiably found that no reasonably informed person would conclude that there is bias or a perception thereof.
[78] Second, the Applicants argue that the decision is not justified because the Review Panel ignored the Vice-Chair’s reasons for referring the complaint. The Applicants note that the Vice-Chair identified five instances demonstrating Justice Spiro’s lack of integrity, all of which put confidence in the independence of the judiciary at risk, yet the Review Panel reached a different conclusion on the same facts. The Applicants acknowledge that the Review Panel had additional information, but argue that this did not provide any explanation for Justice Spiro’s conduct to justify the Review Panel reaching a different conclusion. They allege that the facts were the same before the Vice-Chair and the Review Panel and the findings should, therefore, have been the same.
[79] More generally, the Applicants contend that the decision failed to uphold the mandate of the CJC and the principles of judicial impartiality and independence. They argue that the CJC simply concluded that Justice Spiro was aware of his duty to the public without regard to the very real perceived bias arising from his actions. They submit that the establishment of an Inquiry Committee is required to ensure public confidence in the integrity of the judiciary and in the administration of justice. The Applicants further argue that Justice Spiro’s conduct must be examined in the broader context of historical and ongoing discrimination against Arabs, Muslims, and Palestinians in particular, and with a focus on the public’s perception of the judiciary as a whole and judges’ privileged position in soci

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National Council of Canadian Muslims v. Canada (Attorney General) Court (s) Database Federal Court Decisions Date 2022-07-25 Neutral citation 2022 FC 1087 File numbers T-1005-21 Notes Reported Decision Decision Content Date: 20220725 Docket: T-1005-21 Citation: 2022 FC 1087 Ottawa, Ontario, July 25, 2022 PRESENT: The Honourable Madam Justice Kane BETWEEN: NATIONAL COUNCIL OF CANADIAN MUSLIMS, CRAIG SCOTT, LESLIE GREEN, ARAB CANADIAN LAWYERS ASSOCIATION, INDEPENDENT JEWISH VOICES AND CANADIAN MUSLIM LAWYERS ASSOCIATION Applicants and THE ATTORNEY GENERAL OF CANADA Respondent and CANADIAN JUDICIAL COUNCIL, CENTRE FOR FREE EXPRESSION, CANADIAN ASSOCIATION OF UNIVERSITY TEACHERS, AND B’NAI BRITH OF CANADA LEAGUE FOR HUMAN RIGHTS JUDGMENT AND REASONS [1] The Applicants, individuals and organizations, who made complaints to the Canadian Judicial Council [CJC] regarding the conduct of Justice David Spiro, seek judicial review of the decision of the CJC that ultimately concluded that the conduct complained of did not warrant the establishment of an Inquiry Committee to determine whether to recommend removal from judicial office. The CJC issued a formal expression of concern and closed the complaints. [2] The Applicants argue that the decision is unreasonable on several grounds and seek a declaration that it be quashed and remitted to the CJC for reconsideration. The Applicants further argue that the CJC’s procedures are unfair and should be reviewed, and more particularly, that the CJC breached the duty of procedural fairness owed to the complainants and, as a result, the decision cannot stand. [3] On October 25, 2021, the CJC was granted leave to intervene in order to explain the statutory provisions and process for reviewing complaints, and to make submissions regarding the scope of the duty of procedural fairness owed to complainants within that process. [4] On March 9, 2022, the Centre for Free Expression [CFE] and the Canadian Association of University Teachers [CAUT] were granted leave to jointly intervene to make submissions regarding the impact of Justice Spiro’s conduct on academic freedom and the CJC’s alleged failure to consider this issue. [5] Also on March 9, 2022, B’nai Brith of Canada League for Human Rights [B’nai Brith] was granted leave to address the issue of how a judge’s affiliations or positions on geopolitical conflicts may or may not affect their impartiality, to the extent that these issues arise. [6] For the reasons that follow, I find that the decision of the CJC is reasonable. The CJC considered the jurisprudence that has established the test for a recommendation that a judge be removed from office and applied that test to the facts before it. The CJC did not misapprehend the impact of Justice Spiro’s conduct on academic freedom nor overlook the complaints regarding an apprehension or perception of bias. The CJC acknowledged that Justice Spiro made a serious mistake; however, based on the consideration of all relevant factors, including the factual account of the conduct at issue, Justice Spiro’s acknowledgment of his conduct, early expression of remorse, and the letters of support attesting to his reputation and integrity over the course of his career, the CJC reasonably found that on a go-forward basis there was no reasonable apprehension of bias. [7] In addition, I find that the duty of procedural fairness owed by the CJC to the complainants in the present circumstances is at the lower end of the spectrum of procedural rights and the CJC did not breach the duty owed. I. Background [8] The Applicants filed complaints with the Canadian Judicial Council concerning Justice David Spiro of the Tax Court of Canada. The complaints alleged that Justice Spiro had interfered in an appointment process at the University of Toronto [U of T] Faculty of Law. In accordance with the CJC’s Procedures for the Review of Complaints or Allegations About Federally Appointed Judges [Review Procedures] and the Canadian Judicial Council Inquiries and Investigations By-laws, SOR/2015-203 [By-laws], the Vice-Chair of the Judicial Conduct Committee referred the complaints to a Judicial Conduct Review Panel [the Review Panel]. The Review Panel considered whether Justice Spiro’s conduct might be serious enough to warrant his removal from judicial office and determined that it was not. The Review Panel expressed the belief that further remedial action was not required and remitted the matter to the Vice-Chair. The Vice-Chair issued a formal expression of concern to Justice Spiro, pursuant to section 8.3 of the Review Procedures, and the complaints were subsequently closed. [9] The Executive Director of the CJC wrote to each complainant on May 20, 2021 to advise them of the outcome of the CJC’s review of their complaints. [10] The events underlying the complaints made to the CJC concern Justice Spiro’s communication with an executive at the U of T regarding the possible appointment of Dr. Valentina Azarova as Director of the International Human Rights Program [IHRP] in the Faculty of Law. The background as described below is derived from the information provided to the CJC that is on the record. [11] The Faculty of Law at U of T established a search committee to oversee the hiring process for a new director for its IHRP. In August 2020, the search committee identified Dr. Azarova as their preferred candidate. Dr. Azarova is an international human rights scholar, who resided in Germany. There was ongoing correspondence between Dr. Azarova and members of the hiring committee regarding the details of her appointment, including with respect to her immigration status and whether she would be able to return to Europe in the summers. [12] Although the hiring process was intended to be confidential, persons outside the university, including members of the Centre for Israel and Jewish Affairs [CIJA], became aware of the potential appointment of Dr. Azarova. The CIJA is an advocacy organization with the stated mission of protecting the quality of Jewish life in Canada. [13] On September 2, 2020, Professor Gerald Steinberg, based in Jerusalem, corresponded by email with his contacts at the CIJA, expressing his view that Dr. Azarova is an “anti-Israel academic crusader” whose scholarship “is almost entirely focused on promoting the Palestinian narrative, the Israel ‘apartheid’ theme, war crimes, etc.” Professor Steinberg suggested that the appointment would be “academically unworthy” and that representatives of the CIJA could pursue “quiet discussions” to determine the status of Dr. Azarova’s appointment. Professor Steinberg shared a more detailed memo with the CIJA setting out his concerns and objections to Dr. Azarova’s possible appointment. [14] Judy Zelikovitz, Vice-President, University and Local Partner Services at CIJA, received Professor Steinberg’s email and memo and inquired of others within CIJA whether this concern could be raised with Justice Spiro, a former Director of the CIJA and alumnus of the U of T Faculty of Law. [15] Justice Spiro had resigned from his role with the CIJA upon his appointment to the Tax Court. Justice Spiro had been active in U of T Faculty of Law fundraising campaigns and he and members of his family have made donations. [16] Another CIJA member, who received Professor Steinberg’s email, forwarded their email exchange with Ms. Zelikovitz to Justice Spiro, which stated: I think you can approach him. He is friends with the Dean, Ed Iacobucci. I [am] copying him on this, as I don’t think his reaching out to Ed compromises his judicial position. If I am wrong, David will so advise. [17] On September 3. 2020, Justice Spiro spoke by phone with Ms. Zelikovitz. Justice Spiro recounts that Ms. Zelikovitz relayed the concerns about Dr. Azarova’s potential appointment. Justice Spiro agreed to receive Professor Steinberg’s memo. [18] On September 4, 2020, Justice Spiro spoke by phone with Chantelle Courtney, Assistant Vice-President of Divisional Relations at the Division of University Enhancement, U of T. Ms. Courtney had previously occupied a position at the Faculty of Law. Justice Spiro and Ms. Courtney became friends due to their collaboration on fundraising campaigns. Email exchanges in the record indicate that Ms. Courtney initiated contact with Justice Spiro on August 30, 2020, suggesting that they catch up, and they had arranged to do so by phone the following week, on September 4, 2020. [19] Justice Spiro recounts that he asked Ms. Courtney to find out the status of the appointment process. Ms. Courtney made inquiries, learned that the appointment of Dr. Azarova had not been finalized, and advised Justice Spiro by email that same day. She advised she had passed along the points they had discussed to the Dean. [20] In his submissions to the CJC, Justice Spiro described his phone call with Ms. Courtney as follows: I mentioned that I had learned (from Ms. Judy Zelikovitz, a staff member of the [CIJA]) that a candidate for the position of Director of the [IHRP] at the Faculty of Law had written articles and associated herself with a particular set of positions on the politically fraught Israel-Palestine conflict that may be considered by some to be one-sided and provocative. I did not tell Ms. Courtney, or anyone else at the University, that the candidate, Dr. Valentina Azarova, should not be appointed. I expressed no opinion, political or otherwise, on the merits of her scholarship or the political positions she had advocated. I did express the hope that sufficient due diligence would be done in advance of any such appointment to enable the University of Toronto and the Faculty of Law to respond effectively if and when criticism arose as a result of the candidate’s appointment. I mentioned the matter to Ms. Courtney, at the end of a personal telephone conversation that she had scheduled with me, because I cared deeply about the University and its law school. Although Ms. Zelikovitz suggested that I speak to Dean Iacobucci about the matter, I did not think it appropriate to do so and I did not do so. Nor did I ask Ms. Courtney to communicate with the Dean. [21] On September 4, 2020, Justice Spiro also spoke with Professor Weinrib, a retired U of T professor. Justice Spiro advised Professor Weinrib that, according to Ms. Courtney, the appointment of Dr. Azarova was not confirmed. [22] Over the course of September 4 and the days that followed, the Dean of the Faculty of Law was made aware of the status of the search process and expressed concerns about Dr. Azarova’s potential appointment on a number of grounds. On September 9, he informed the search committee that Dr. Azarova’s appointment would not proceed, citing the need for the selected candidate to be available soon and the immigration obstacles encountered. The Dean explained that this decision had not been influenced by either political considerations or external pressure. [23] Members of the search committee reacted negatively and the IHRP’s faculty advisory committee later resigned. [24] In December 2020, the U of T commissioned the Honourable Thomas Cromwell to conduct an independent and impartial review of the selection process for the Director of the IHRP, to determine whether university policies were followed, and to provide guidance for the future. His report, titled “Independent Review of the Search Process for the Directorship of the International Human Rights Program at the University of Toronto, Faculty of Law” [the Cromwell Report], was issued on March 15, 2021. II. The Complaints [25] Although the U of T’s process for the appointment of the Director was supposed to be confidential, it became known that Dr. Azarova was a candidate, and it became known, particularly among some academics, that Dr. Azarova would not be appointed. Media reports followed, reporting allegations of judicial interference in the IHRP search process. [26] Between mid-September and mid-October 2020, several groups and individuals filed complaints with the CJC, including the Applicants: Professor Leslie Green of the Queen’s University Faculty of Law emailed the CJC on September 16, 2020, to express concern that a judge of the Tax Court (unnamed at the time) had allegedly interfered with a confidential academic appointment process. He wrote again the following day to submit an official complaint, urging that if the allegations of interference were well founded, it would jeopardize the integrity and impartiality of the Tax Court and would give reason to any party or lawyer appearing before it who is Palestinian, Arab or Muslim to fear bias. Professor Craig Scott of Osgoode Hall Law School subsequently wrote to reiterate and adopt Professor Green’s complaint. The National Council of Canadian Muslims [NCCM] complained, requesting an investigation into the reported conduct. The NCCM acknowledged that the allegations were unproven and “not yet grounded in independently verifiable fact,” but explained why an investigation was called for. The NCCM noted that the allegations called into question the integrity of the judiciary. The NCCM relayed concerns of Muslim academics that this incident reflects a broader trend of judicial interference in hiring decisions and with academic freedom. The NCCM also expressed concern about the reasonable apprehension of bias for those appearing before the Tax Court. The Arab Canadian Lawyers Association, Independent Jewish Voices and the British Columbia Civil Liberties Association filed a joint complaint to provide context about how anti-Palestinian racism silences Palestinians and their allies. The complaint added that Justice Spiro’s alleged conduct failed to meet the standard of integrity required of a judge and undermined public confidence in the judiciary. The complainants reiterated concerns about Justice Spiro’s impartiality or the public perception thereof. The Canadian Association of Muslim Women in Law and the Canadian Muslim Lawyers Association also filed a joint complaint raising concerns about Justice Spiro’s impartiality and independence. III. The CJC’s Response to the Complaints A. The Initial Screening of the Complaints [27] The CJC acknowledged each of the complaints by email, noting that the complaints would be reviewed in accordance with the CJC’s Review Procedures and that once the review was completed, the Acting Executive Director would communicate with the complainants. The email further noted that if the complainant wished to add information to their complaint, this information could be sent to the email address provided. A link to the website of the CJC was also provided for further information on the complaints process. [28] On September 30, 2020, in accordance with the CJC’s Review Procedures and following the initial screening of the complaints, the Acting Executive Director of the CJC [the Executive Director] wrote to Justice Spiro and to the Chief Justice of the Tax Court, Eugene Rossiter, to invite a response. [29] On October 23, 2020, Chief Justice Rossiter responded, attesting to Justice Spiro’s good character and his contribution to the Tax Court. Chief Justice Rossiter expressed his opinion that this was a one-off event and that he was confident in Justice Spiro’s ability to judge impartially and without bias. The Chief Justice indicated that the Tax Court had taken the initiative of requesting that Justice Spiro recuse himself from any files in which parties or counsel appeared to be Muslim or of the Islamic faith to “allow for any concern related to a potential perceived bias from Justice Spiro to be removed.” [30] On October 26, 2020, Justice Spiro responded. He acknowledged that he had made a mistake in communicating with the U of T regarding the appointment process and expressed regret for his actions and the consequences for public confidence in the judiciary. He explained that he had not attempted to exert pressure or to influence the hiring decision, nor to express any personal disapproval of Dr. Azarova’s scholarship. He stated that his only concern was to prepare the U of T and the Faculty of Law for what he anticipated would be an adverse and highly public reaction. He added that he harbours no anti-Palestinian, anti-Arab or anti-Muslim sentiment and has devoted significant time throughout his career to better understanding the Israel-Palestine conflict and to building bridges between the communities involved. [31] In accordance with the CJC’s Review Procedures, the Executive Director referred the complaints to the Vice-Chair of the Judicial Conduct Committee, Associate Chief Justice of the Alberta Court of Queen’s Bench, Kenneth Nielsen. B. Reasons for Referral by the Vice-Chair of the Judicial Conduct Committee [32] The Vice-Chair reviewed the complaints and the responses of Justice Spiro and Chief Justice Rossiter. On January 5, 2021, the Vice-Chair issued written reasons for finding that he had concerns significant enough to require the establishment of a Judicial Conduct Review Panel. [33] The Vice-Chair considered the information and submissions received to date. The Vice-Chair stated that the question remained as to the purpose of Justice Spiro’s comment to Ms. Courtney that the appointment was likely to generate backlash, noting Justice Spiro’s assertion that his intent was to warn the Faculty of the likely controversy. The Vice-Chair expressed the view that Justice Spiro had indicated a lack of integrity and departed from his duty of impartiality when he received information from the CIJA about their concerns about the selection of Dr. Azarova; conveyed this information to an executive at the university; failed to clarify that the views he expressed were not necessarily his own; asked the executive to make inquiries regarding the status of the selection process; and conveyed that information to another person. The Vice-Chair stated that in his view, “Justice Spiro’s conduct puts at risk public confidence in the integrity, impartiality and independence of the judiciary” and, together with Justice Spiro’s lack of insight into the inappropriateness of his conduct, raised concerns about his fitness to hold office as a judge. [34] The Vice-Chair referred the complaints to the Review Panel in accordance with subsection 2(1) of the CJC’s By-laws, which provides that the Chair or Vice-Chair may establish a Review Panel if they determine that “a complaint or allegation on its face might be serious enough to warrant the removal of the judge.” C. The Report of the Review Panel [35] On April 13, 2021, the Review Panel issued its 14-page report. The Review Panel noted that its task was to determine whether an Inquiry Committee should be constituted to inquire into Justice Spiro’s conduct. In accordance with subsection 2(4) of the By-laws, the Panel may do so “only if it determines that the matter might be serious enough to warrant the removal of the judge.” [36] The Panel noted the various complaints received and the concerns raised therein. The Panel also described the background giving rise to the complaints and as described above. [37] The Review Panel noted the distinction between its role and that of the Vice-Chair, with reference to subsections 2(1) and (4) of the By-laws, and added that this distinction suggests a more searching inquiry by the Review Panel. [38] The Review Panel noted that it did not make findings of fact; rather, it weighed the evidence on the record to determine whether the conduct meets the “might be” threshold in subsection 2(4) of the By-laws. The Panel noted that this threshold “surely reflects a threshold higher than ‘slim to none’ but short of ‘on a balance of probabilities.’” The Panel added that the “‘might be’ threshold must reflect the very significant seriousness of the remedy of removal; the ‘crime’ must fit the ‘punishment.’” [39] The Review Panel noted two aspects to the complaints. The Review Panel first considered the issue of perceived bias, noting that “to be specific, it would be seen to be a bias against Palestinian, Arab or Muslim interests.” The Panel determined that an informed person, apprised of the conduct of Justice Spiro over the course of his career and including this matter, could not conclude that Justice Spiro would be unable to decide cases impartially. The Panel considered that the fear of bias expressed in the complaints was based on misinformation and speculation regarding the true extent of Justice Spiro’s interference. The Panel noted that like Justice Spiro, who was formerly a director of CIJA, most, if not all, judges have backgrounds involving similar community, religious, or cultural associations, and that such affiliations are not themselves sufficient to establish a perception of bias. [40] The Review Panel concluded that the future fear of bias was not well founded and could not form the basis for directing that an Inquiry Committee be constituted. [41] The Review Panel then considered the allegation of serious misconduct by actively aiding a lobby group attempting to prevent the appointment of a person whose views are at odds with those of the lobby group. The Review Panel noted the distinction between voicing concern about the publicity that may arise from the appointment and actively lobbying against the appointment based on disapproval of the candidate. [42] The Review Panel found that the appropriate characterization of Justice Spiro’s conduct was an expression of concern that the appointment might subject the Faculty of Law to adverse criticism and publicity. The Review Panel noted that the Cromwell Report was confirmatory of this characterization. The Cromwell Report concluded, based on detailed accounts, “that the Alumnus [Justice Spiro] simply shared the view that the appointment would be controversial with the Jewish community and cause reputational harm to the University.” [43] The Review Panel also cited the conclusion in the Cromwell Report that it could not be inferred from the facts gathered that Justice Spiro’s communication with Ms. Courtney had factored into the decision to terminate Dr. Azarova’s candidacy. [44] The Review Panel noted that the concern about active lobbying or advocacy was based on the inaccurate premise that Justice Spiro had acted in furtherance of CIJA’s aim of preventing Dr. Azarova’s appointment and had done so in contact with the Dean. The Review Panel determined that this was not the case, and that Justice Spiro was rather “an active, generous alumnus who has historically and admirably supported his law school, expressing concern that a potential faculty appointment will subject the institution to unwanted controversy and harsh publicity.” [45] The Review Panel explained that the test for removal is stringent, citing the test established by the Supreme Court of Canada in Therrien (Re), 2001 SCC 35 at para 147 [Therrien] and subsection 2(4) of the CJC’s By-laws. The Panel could not conclude that Justice Spiro’s conduct “might be serious enough to warrant” his removal from office. The Panel noted that Justice Spiro has recognized his mistakes, adding, “These errors are serious but in the end do not, in our view, warrant the imposition of the ultimate penalty for judicial misconduct.” In light of Justice Spiro’s remorse and acknowledgment of his mistakes, the Panel recommended that no further remedial action by the CJC or the Chief Justice of the Tax Court was required. The Review Panel referred the matter back to the Vice-Chair in accordance with subsection 2(5) of the By-laws. [46] On April 22, 2021, after the Review Panel had issued its Report and referred the matter to the Vice-Chair for disposition, but prior to its public release, Professor Scott sent further submissions to the CJC. Professor Scott noted the passage of several months and his concern that the CJC had not solicited further submissions from him. Professor Scott’s submissions focussed on his criticism of the Cromwell Report and urged the Review Panel to make its own findings. Professor Scott attached several articles and letters that were also critical of the process and findings in the Cromwell Report. D. The Vice-Chair’s Decision [47] On May 19, 2021, the Vice-Chair wrote to Justice Spiro to inform him that the Review Panel had determined that his conduct was not such that it might be serious enough to warrant removal. The Vice-Chair noted that his task was to decide the “most appropriate way to resolve the complaints.” The Vice-Chair stated that in deciding that no further action was necessary, he had considered Justice Spiro’s sincere regret and his early recognition of his mistake, the support of his Chief Justice and the Report of the Review Panel. However, the Vice-Chair found it necessary to issue a formal expression of concern, in accordance with section 8.3 of the Review Procedures. [48] The Vice-Chair stated that Justice Spiro’s conduct had put public confidence in the integrity, impartiality and independence of the judiciary at risk and also risked diminishing confidence in the administration of justice. The Vice-Chair noted that his comments were offered in a constructive spirit. The Vice-Chair addressed the media reports and the concerns expressed by the complainants, including those of law professors and various lawyers’ organizations, noting that these “are a testimony to the perception of the public and of the impact of your conduct.” The Vice-Chair added, “At all times, judges should ensure that their conduct, both in and out of court, will sustain and contribute to public respect and confidence in their integrity, independence, impartiality and judgment.” E. The Executive Director’s Letters to the Complainants [49] On May 20, 2021, the Executive Director wrote to each complainant to inform them of the review procedures that had been undertaken, the conclusions of the Review Panel, and the key facts and reasons for the Review Panel’s conclusion. The Executive Director also explained the basis for the Vice-Chair’s decision to issue a formal expression of concern, noting the Vice-Chair’s view that it was “a serious error for Justice Spiro to discuss the appointment of the Director of IHRP, one that he regrets and that he states he has learned from,” but that “Justice Spiro is acutely aware of his duty to the public, as a judge, to not only ensure he is impartial, but to be seen as being impartial.” [50] The Executive Director stated that the Vice-Chair had instructed her to close the complaints. [51] The letters to each of the complainants were identical, with the exception of an additional paragraph in the letter to Professor Scott, which noted his additional submissions. That letter stated, “The Review Procedures and the By-laws do not provide an opportunity for a complainant to make submissions to a Review Panel, and Review Panels do not seek such submissions. Nevertheless, Associate Chief Justice Nielsen [the Vice-Chair] commented he did review your submissions of April 22, 2021 when making his decision on the most appropriate way to resolve this complaint.” F. The CJC’s News Releases [52] On January 11, 2021, the CJC issued a news release, “Canadian Judicial Council constitutes a Review Panel in the matter involving the Honourable D.E. Spiro,” noting that the Vice-Chair had referred the matter to the Review Panel. [53] On May 21, 2021, the CJC issued a news release, “Canadian Judicial Council completes its review of the matter involving the Honourable D.E. Spiro.” The news release provided a similar summary to that sent to the complainants. [54] On October 12, 2021, the CJC issued a news release entitled “Report of the Review Panel Regarding the Honourable D.E. Spiro,” which provided a link to the Report. IV. The Issues and Standard of Review [55] This application raises two issues. [56] The first is whether the CJC’s ultimate decision—to close the complaints without constituting an Inquiry Committee and with a formal expression of concern and no further remedial action—is reasonable. As described below, the Applicants challenge the reasonableness of the decision on several grounds. [57] A reasonable decision is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision-maker (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at paras 85, 102, 105–07 [Vavilov]). A decision should not be set aside unless it contains “sufficiently serious shortcomings … such that it cannot be said to exhibit the requisite degree of justification, intelligibility and transparency” (Vavilov at para 100). [58] In Portnov v Canada (Attorney General), 2021 FCA 171 at para 33 [Portnov], the Federal Court of Appeal confirmed that as in pre-Vavilov jurisprudence, the Court may look beyond the decision to determine its reasonableness: In conducting reasonableness review, this Court is entitled to look at the reasons offered by the decision-maker, associated documents that shed light on the reasoning process, any submissions made to the decision-maker, and the record before the decision-maker. Reasons can be express or implied. See generally Mason at paras. 30-42 and the citations to Vavilov therein. [59] In Girouard v Canada (Attorney General), 2020 FCA 129 [Girouard], regarding a decision of the CJC, the Court of Appeal found that, although the decision under appeal had been rendered before the Supreme Court of Canada’s decision in Vavilov, it respected the Vavilov principles. [60] In Girouard, the Court of Appeal stated, at para 42, Ultimately, the onus is always on the applicant to demonstrate that a decision is unreasonable, and reasonableness must be assessed taking into account both the outcome of the decision and the reasoning process that led to that outcome (Vavilov, at paras. 75 and 87). Reasonableness review finds its starting point in judicial restraint and respects the distinct role of administrative decision-makers (Vavilov, at paras. 75 and 82). In other words, the role of a reviewing court is to consider the reasonableness of the decision made, not to assess that decision against the decision it would have made: It follows that the focus of reasonableness review must be on the decision actually made by the decision maker, including both the decision maker’s reasoning process and the outcome. The role of courts in these circumstances is to review, and they are, at least as a general rule, to refrain from deciding the issue themselves. Accordingly, a court applying the reasonableness standard does not ask what decision it would have made in place of that of the administrative decision maker, attempt to ascertain the “range” of possible conclusions that would have been open to the decision maker, conduct a de novo analysis or seek to determine the “correct” solution to the problem. Vavilov, at paragraph 83. [61] The second issue is whether the CJC breached the duty of procedural fairness owed to the complainants in the circumstances of this case. The Applicants also raise the more general issue of whether the CJC’s complaint review procedures, including the lack of an opportunity for complainants to make further and responsive submissions, are unfair. [62] Where an issue of procedural fairness arises the Court must consider whether the procedure followed by the decision-maker was fair having regard to all of the circumstances, including the Baker factors: Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817, 1999 CanLII 699 [Baker]; Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69 at para 54 [CPR]. Where a breach of procedural fairness is found, no deference is owed to the decision-maker. V. The Applicants’ Submissions [63] The Applicants submit that the decision is not reasonable. The Applicants also submit that the CJC’s process for reviewing complaints is not procedurally fair and, in particular, that the CJC breached the duty of procedural fairness owed to them as complainants. A. The Decision [64] The Applicants characterize the letters sent by the Executive Director to the complainants on May 20, 2021 as the decision that is subject to judicial review. The Applicants note that they had nothing more than these letters on which to seek judicial review of the decision. The Applicants add that they only received other documents upon receipt of the certified tribunal record [CTR] from the CJC after they filed this application. B. Reasonableness of the Decision [65] The Applicants submit that the decision is not reasonable; the decision letters fail to explain the basis for the decision and do not provide any link to the reasons of the Review Panel or the reasons of the Vice-Chair for closing the complaints. The Applicants generally submit that the decision does not meet the reasonableness standard established in Vavilov; it is not transparent, justified and intelligible. [66] The Applicants argue that the CJC erred in two respects: the Review Panel erred by not finding that the complaints should be referred to an Inquiry Committee, and the Vice-Chair erred in finding that no further action was warranted. The Applicants submit that given that the CJC agreed that Justice Spiro’s conduct was a serious mistake, the conclusion that no further remedial measures were required is unreasonable. [67] The Applicants explain that the heart of the complaints is that Justice Spiro improperly interfered in an academic appointment on behalf of an advocacy group after his appointment to the bench. The Applicants clarify that they are not focussing on Justice Spiro’s personal beliefs or his advocacy prior to his appointment. [68] The Applicants submit that the CJC failed to appreciate that the complaints raised two distinct issues: whether Justice Spiro’s improper interference in an academic appointment for the benefit of an advocacy organization by relying on his past contacts amounted to misconduct; and whether this conduct raised a reasonable apprehension of bias. (1) Lack of a rational chain of analysis [69] The Applicants submit that the decision lacks internal coherence and a rational chain of analysis for several reasons. [70] First, the Applicants submit that the Review Panel’s report lacks a rational chain of analysis because it fails to articulate a legal test or standard against which to determine whether Justice Spiro’s conduct was serious enough to warrant removal. [71] Second, the Applicants submit that the Review Panel made an incomprehensible and unexplained distinction between Justice Spiro’s conduct as voicing concern about the negative impact of Dr. Azarova’s appointment rather than actively campaigning against it. [72] The Applicants point to several events, which they submit demonstrate that Justice Spiro’s involvement was more than simply voicing his concern and that his conduct amounted to advocacy on behalf of the CIJA. The Applicants point to: Professor Steinberg’s email to the CIJA attaching his memo setting out concerns about Dr. Azarova’s work and requesting that the CIJA find out the status of the appointment process, which led to CIJA reaching out to Justice Spiro. · Justice Spiro’s email with Ms. Courtney and their telephone conversation in which he raised the issue of Dr. Azarova’s appointment. · Justice Spiro’s acknowledgment that it would not be appropriate for him to contact the Dean. · The concern that although Justice Spiro did not ask Ms. Courtney to contact the Dean, Justice Spiro would have known that she would raise the issue with the Dean, given the email exchange, which reflects that Ms. Courtney undertook to advise Justice Spiro of the status and Justice Spiro suggested she contact him if she needed further information. · The concern that Justice Spiro shared the memo prepared by Professor Steinberg, who described Dr. Azarova as “one of the nastiest anti-Israeli academic crusaders” and a “hard core activist,” with Professor Weinrib (a retired U of T prof). [73] Third, the Applicants submit that the decision failed to address the fundamental complaint that Justice Spiro acquiesced to the request of a lobby group, the CIJA, which shows that he continued his advocacy for the CIJA after his appointment to the bench. [74] Fourth, the Applicants submit that the decision fails to address the perception of bias and the issue of confidence in the administration of justice arising from this perception. The Applicants add that the CJC failed to specifically address the complaints of anti-Palestinian bias and conflated anti-Palestinian racism with anti-Muslim and anti-Arab racism in a manner that reinforces the marginalization of Palestinian Canadians. The Applicants note that the Chief Justice of the Tax Court acknowledged the concerns about bias, yet the Review Panel ignored them. [75] Fifth, the Applicants submit that the decision fails to explain why the Vice-Chair determined that closing the complaints was the most appropriate resolution of the matter, given the availability of other remedial measures. They also criticize the Vice-Chair for not explaining how Justice Spiro’s remorse mitigated the seriousness of his conduct. (2) Lack of justification on the facts and the law [76] The Applicants also submit that the decision is unreasonable because it is not justified in the light of the facts and the law. [77] First, the Applicants argue that the facts do not support the finding that “no right thinking person” would conclude that there was a reasonable apprehension of bias. The Applicants submit that there was ample evidence of a reasonable apprehension of bias, pointing to Justice Spiro’s previous involvement with CIJA, views he previously expressed regarding “anti-Israel propaganda,” and his interference in this appointment process, which is argued to demonstrate ongoing advocacy on behalf of CIJA since his appointment to the bench. The Applicants again submit that the measures taken by the Chief Justice of the Tax Court to remove Justice Spiro from certain files—which shows the Chief Justice’s concern about a reasonable apprehension of bias—should have signalled to the CJC that Justice Spiro’s conduct raised concerns of integrity, impartiality and independence. Yet, the CJC unjustifiably found that no reasonably informed person would conclude that there is bias or a perception thereof. [78] Second, the Applicants argue that the decision is not justified because the Review Panel ignored the Vice-Chair’s reasons for referring the complaint. The Applicants note that the Vice-Chair identified five instances demonstrating Justice Spiro’s lack of integrity, all of which put confidence in the independence of the judiciary at risk, yet the Review Panel reached a different conclusion on the same facts. The Applicants acknowledge that the Review Panel had additional information, but argue that this did not provide any explanation for Justice Spiro’s conduct to justify the Review Panel reaching a different conclusion. They allege that the facts were the same before the Vice-Chair and the Review Panel and the findings should, therefore, have been the same. [79] More generally, the Applicants contend that the decision failed to uphold the mandate of the CJC and the principles of judicial impartiality and independence. They argue that the CJC simply concluded that Justice Spiro was aware of his duty to the public without regard to the very real perceived bias arising from his actions. They submit that the establishment of an Inquiry Committee is required to ensure public confidence in the integrity of the judiciary and in the administration of justice. The Applicants further argue that Justice Spiro’s conduct must be examined in the broader context of historical and ongoing discrimination against Arabs, Muslims, and Palestinians in particular, and with a focus on the public’s perception of the judiciary as a whole and judges’ privileged position in soci

National Council of Canadian Muslims v. Canada (Attorney General)

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Klouvi c. Canada (Procureur général)

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National Council of Canadian Muslims v. Canada (Attorney General)

Source text

Full judgment (source text)

Klouvi c. Canada (Procureur général)

Related cases

Klouvi c. Canada (Procureur général)

Dunsmuir v New Brunswick

Exam & revision prep